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Judgment
This petition is file with a prayer for
quashing of Criminal Case No.171 of 2012 filed before the
Court of JMFC at Unjha. Such complaint is filed on
13.04.2012 under Section 138 of the Negotiable
Instruments Act.
In the complaint, it is alleged that on account
of financial difficulties faced by the accused
(petitioner herein), he had borrowed amount of Rs.5 lakhs
from the complainant (respondent No.2). It is alleged
that cheque No.302640 of SBI, Visnagar Branch dated
15.03.2012 for an amount of Rs.3,50,000/- was issued in
favour of respondent No.2 in part satisfaction of the
amount borrowed. When such cheque was deposited with the
Bank, it was dishonoured with an endorsement that opening
balance is insufficient. Statutory notice issued by
respondent No.2 was not responded to by the petitioner
and hence, impugned complaint was filed before JMFC,
Unjha. After recording of verification, process has been
issued by order dated 13.04.2012.
This Court by order dated 20.06.2012 issued
Rule notice and granted interim relief, by which further
proceedings were stayed and the matter was ordered to be
heard with Criminal Misc.Application No.4987 of 2012.
Thereafter, fresh Rule was issued by order dated
08.01.2016 and it appears that, Rule is served upon the
complainant. However, the complainant (respondent No.2
herein) has chosen not to appear despite effective
service of Rule.
Heard Mr.Dakshesh Mehta, learned Advocate for
the petitioner and learned APP Mr.K.L.Pandya for
respondent No.1-State.
Mr.Dakshesh Mehta, learned Advocate for the
petitioner submitted that the petition, with which the
present petition was ordered to be heard with, viz.
Criminal Misc.Application No.4987 of 2012, has been
allowed by this Court by oral judgment dated 02.09.2016,
wherein M.Case No.9 of 2012, filed under the order of
JMFC, Unjha, has been ordered to be quashed and set
aside. He submitted that the present complaint is
nothing but an arm-twisting method as the petitioner is
husband of one Anjanaben, who is having an extramarital
affair with the complainant (respondent No.2 herein) and
by taking advantage of such situation, he has come in
possession of cheque in question and now the same is
being misused. Otherwise, he contended that the
petitioner has no business relation with the respondent
complainant and that at no point of time, there was any
legally enforceable debt for which the cheque could have
been issued by the petitioner.
Learned Advocate for the petitioner further
submitted that as the petitioner was being threatened
from time to time on account of illicit affair with
Anjanaben, the petitioner has preempted legal
consequences of several complaints at the hands of his
wife and respondent No.2 herein. He had, therefore,
addressed notice dated 22.03.2012 to the concerned Police
Station including DSP, Mahesana bringing to the notice
that petitioner is likely to be faced with several and
frivolous complaints and his fear is now a reality as his
wife has also filed criminal case against him and as
respondent No.2 is having affair with his wife, has filed
the present complaint.
Learned APP submitted that appropriate order
may be passed by the Court.
Perusal of the case papers would clearly
indicate that there does not appear to be any business or
commercial relation between the petitioner and respondent
No.2 and as is indicated in the notice addressed to DSP,
the wife of the petitioner and respondent have joined
hands to initiate frivolous complaint. One such
complaint which is filed by the wife being M.Case No.9 of
2012 is already quashed by the coordinate Bench vide oral
judgment dated 02.09.2016.
The absence of the respondent to defend his
complaint before this Court is also conspicuous and
therefore, it appears that respondent No.2 is no more
interested in prosecuting the complaint. In view of the
aforesaid, there is no reason to withstand the present
complaint, which appears to be filed with frivolous
object of harassing the petitioner and thus, abuse of
process of law.
In view of the aforesaid, Criminal Case No.171
of 2012 filed before the Court of JMFC at Unjha is hereby
ordered to be quashed and set aside. The petition is
allowed. Rule is made absolute.